Danese v. Asman
| Decision Date | 16 September 1987 |
| Docket Number | Civ. A. No. 84-9797 PH. |
| Citation | 670 F. Supp. 729 |
| Parties | Janet M. DANESE, Personal Representative of the Estate of David Danese, Dec'd., Louis Danese, Daniel Danese, Pamela Danese, Margaret Danese, Thomas Danese, Frances Danese and Louis Danese, Ind., Plaintiffs, v. Thomas A. ASMAN, Ind. and as Chief of Police for the City of Roseville, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
William G. Povlitz, Petz & Povlitz, Grosse Pointe Woods, Mich., for plaintiffs.
J. Russell LaBarge, Roseville, Mich., for defendants — Officer Kenyon and City of Roseville & Officer Gowsoski.
James R. Goulding, Detroit, Mich., for defendants — Pelt & Hawkins.
John R. Secrest, John H. Cowley, Jr., Farmington Hills, Mich., for defendant City of Roseville.
Thomas E. Spencer, Grand Rapids, Mich., for defendants — Asman, Hill, Peters & Stein.
This jail suicide action arises from the hanging of David Danese in the Roseville City Jail on November 9, 1982. Plaintiffs, the deceased's father, mother, siblings and estate, originally brought this action under 42 U.S.C. 1983 and 1985.1
Originally named as defendants were the City of Roseville, the Roseville Police and Fire Departments, Mayor Riesterer, Chief of Police Asman, Inspector Peters, Sergeants Hill and Stein, officers Gowsoski, Churchran, Cardinal and Kenyon, Fire Chief Ireland and Fire Department employees Pelt, Donald Komack, Robert Komack and Hawkins. The Police and Fire Departments, Mayor Reisterer, Chief Ireland, Donald Komack and Robert Komack have been dismissed.2
Before the Court are the following motions:
The facts as alleged in plaintiffs' complaint are summarized in this Court's memorandum opinion and order issued on May 22, 1987, and need not be recounted in full here. In short, Danese was arrested at approximately 2:50 a.m. on November 9, 1982, by officers Churchran and Gowsoski for driving while under the influence of alcohol. The breathalyzer tests administered to Danese by Cardinal resulted in scores of .13% establishing that Danese was legally drunk.
Danese was subsequently placed in a holding cell allegedly secluded from the view of the officers on duty. He was found hanging from the cross bars by his shirt by Cardinal, Kenyon and Stein at 5:56 a.m. The Fire Department's rescue truck arrived at 5:59 a.m. and the ambulance arrived at 6:02 a.m. No life-saving techniques were applied; Danese was pronounced dead at 7:08 a.m. The following claims were alleged by plaintiffs in their first amended complaint:
SECTION 1983
Asman, Peters and Hill
City
Pelt and Hawkins
1. Failure to render any life-saving techniques in violation of the eighth and fourteenth amendments.
1. Conspiracy between Asman and other police officials to preclude inspection of the jail facilities by plaintiff.
See Memorandum Opinion and Order, pp. 2-4.
On May 22, 1987, the Court issued a memorandum opinion and order in response to a motion to dismiss filed by the police officers and a motion for summary judgment filed by the Police and Fire Departments, the City and Mayor Reisterer.
The Court dismissed the claims under the eighth amendment because Danese had not been convicted of a crime. With respect to Hill, Stein, Cardinal, Churchran, Gowsoski and Kenyon, the fourteenth amendment claim for failure to provide proper medical assistance was dismissed. Remaining is the fourteenth amendment claim for failing to protect Danese from hanging himself.
With respect to the claims against Asman, Peters and Hill, the inadequate procedures claim was dismissed with leave to amend. Remaining is the fourteenth amendment defective building claim.
The inadequate procedures and defective building claims under the fourteenth amendment remain against the City, as does the claim against Pelt and Hawkins under the fourteenth amendment. The section 1985 claim was dismissed.
The parties having agreed to dismiss each of these three defendants, these motions are DENIED AS MOOT.
III. ASMAN, PETERS, HILL, STEIN, GOWSOSKI, CHURCHRAN, CARDINAL AND KENYON'S MOTION FOR SUMMARY JUDGMENT; ASMAN PETERS, HILL, STEIN AND THE CITY OF ROSEVILLE'S MOTION FOR SUMMARY JUDGMENT AND TO DISMISS; ASMAN, PETERS, HILL AND STEIN'S MOTION FOR JUDGMENT ON THE PLEADINGS OR FOR SUMMARY JUDGMENT
In dismissing plaintiffs' inadequate procedures claim against Asman, Peters and Hill, the Court granted plaintiffs ten days to amend their complaint to include factual support for their claim that inadequate police training existed and was the proximate cause of the alleged unconstitutional treatment of Danese. On June 19, 1987, plaintiffs submitted their second amended complaint. On August 4, 1987, the Court vacated its prior order granting leave to amend because the second amended complaint far exceeded the scope intended by the Court in its original order. Plaintiffs were ordered to file a supplement to the original complaint containing any factual support for the inadequate procedures claim. A second amended complaint was properly filed by plaintiffs on August 17, 1987.
Subsequent to the filing of the first of plaintiffs' second amended complaints on June 19, 1987, but prior to the refiling of the second on August 17, 1987, defendants Asman, Peters, Hill, Stein, Gowsoski, Churchran, Cardinal and Kenyon filed their motion for summary judgment. The motion was filed on July 24, 1987. The motion alleges that the June 19 second amended complaint raises new issues not addressed in the first amended complaint. The defendants, however, merely incorporate their previously filed motion, and for the first time rely on Gagne v. City of Galveston, 805 F.2d 558 (5th Cir.1986).
Also filed in the interim between June 19 and August 17, was the motion by Asman, Peters, Hill and the City of Roseville. This motion addresses the question of qualified immunity left unresolved by the Court in its opinion as a result of the dismissal of the inadequate procedures claim. This motion was also filed on July 24, 1987. The defendants in both motions have agreed that the motions are equally applicable to the August 17 second amended complaint, even though they were filed prior to the August 17 second amended complaint. Finally, Asman, Peters, Hill and Stein submitted their motion for judgment on the pleadings or for summary judgment on August 24, 1987, through newly substituted attorney Thomas E. Spencer.
Each of these three motions are primarily premised on the defense of qualified immunity. The first and last of the three motions each raise issues already disposed of in the Court's May 22 opinion. Nevertheless, because of the confused nature of the pleadings in this matter and the complexity of the legal issues involved, the Court will reconsider the question of qualified immunity as it pertains to each of the claims against each of the defendants. Reconsideration of the qualified immunity defense will also allow the Court to consider the question of qualified immunity in light of Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
Plaintiffs allege that the officers failure to protect Danese from hanging himself constitutes a violation of the due process clause of the fourteenth amendment. The Court previously held that the plaintiffs' claims may arise under two separate aspects of the liberty interest protected by the due process clause. First, a detainee's liberty interest proscribes conditions or restrictions during confinement which amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1871-72, 60 L.Ed.2d 447 (1979). Second, a detainee also has a liberty interest in safe conditions of confinement. Youngberg v. Romero, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1972). See also Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (Blackmum, J. Dissenting) (1986).3 It must now be determined whether these two rights the officers are alleged to have violated were "clearly established" at the time of Danese's death.
The Court again begins with the standard set forth by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73...
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